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IDEA Complaint Decision 20-054

On September 4, 2020 (letter dated August 30, 2020), the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against XXXXX (district). The issue identified is whether the district, beginning September 4, 2019, properly developed the individualized education program (IEP) of a student with a disability.

School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet the obligation to provide FAPE to a student with a disability, in part, by providing the special education services specified in the student’s IEP. Each student’s IEP must include a statement of special education, related services, supplementary aids and services, and program modifications or supports for school staff to be provided based on each student’s unique needs. In developing the student’s IEP, the IEP team must consider the concerns of the student’s parents for enhancing the education of their child. (34 CFR § 300.320; Wis. Stat. § 115.787 [3][a]). When developing the IEP for a student with a disability, the IEP team must work toward consensus, but the district has the ultimate responsibility to ensure that the IEP includes the services the student needs in order to provide FAPE. Districts must provide parents prior written notice any time the district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of FAPE to the student. The prior written notice must contain the following required components: a description of the action proposed or refused by the district; an explanation of why the district proposes or refuses to take the action; a description of each evaluation procedure, assessment, record, or report the district used as a basis for the proposed or refused action; a statement that the procedural safeguards under federal and state special education law are available to parents and if necessary, where a statement describing those safeguards may be obtained; sources for parents to contact to obtain assistance in understanding procedural safeguards; a description of other options that the IEP team considered and the reasons why those options were rejected; and a description of other factors that are relevant to the district's proposal or refusal. (34 C.F.R. §§ 300.324 and 300.503).

During the 2019-2020 school year, the student who is the subject of this complaint attended school at the district’s early childhood center for 4K. The student was to transition to the elementary school for 5K at the beginning of the 2020-2021 school year. In mid-March 2020, school buildings in Wisconsin were closed in response to the public health emergency created by COVID-19. Over the summer of 2020, the student’s parents attempted a 45-minute per day virtual summer school class with the student. The student’s parents reported the student had significant difficulty engaging in virtual learning for more than a few minutes at a time as a result of the student’s disability. During the fall semester of the 2020-2021 school year, the student’s school reopened using a hybrid in-person/virtual model. Students attended school two days per week in-person and three days per week virtually. The student’s parents expressed concerns to district staff regarding the schedule given the student’s need for consistency and routine and the significant difficulty the student had engaging in virtual instruction. The parents requested the student be allowed to attend school in-person four days per week. The student’s parent’s also requested a one-to-one educational assistant be provided for the student to assist the student with focus and with personal care related to difficulties with proper hygiene after using the restroom and following occasional accidents. The parents had a conversation regarding these requests with an administrator from the district in early September 2020. The administrator indicated the requests would not be granted at that time, explaining that the district’s information about the student did not point to the student having disability-related needs requiring that level of support. The district should have conducted an IEP team meeting at this time to discuss these concerns and to consider the parents’ requests.

On October 14, 2020, the student’s IEP team met to review and revise the IEP, specifically, to create a contingency plan for the student to prepare for potential switching from in-person to distance learning. Neither the invitation to the IEP team meeting nor the cover sheet indicates discussing the parents’ concerns was a purpose of the meeting. During the IEP team meeting, the parents again raised their concerns regarding the student’s current needs. Rather than engaging in a thorough discussion of the student’s needs at the IEP team meeting, district staff explained that they felt the district’s existing evaluation information on the student was not sufficient to justify the requested supports. District staff explained that in the next few months, the student would be due for a three-year reevaluation, and at that time, the team could assess the student to determine the student’s needs in this area. The IEP developed does not include documentation of the parents’ concerns nor the IEP team’s discussion of these concerns. The placement page of the IEP indicates the team did not consider and reject any other options regarding the student’s needs or placement. The district has not yet initiated the student’s reevaluation.

The district did not properly develop the student’s IEP. The IEP team did not fully consider the parents’ concerns and requests and did not document the discussion or the reasons for refusing the parents’ requests. The parents were also not provided adequate prior written notice of the district’s decisions regarding their request. Additionally, while the district expressed willingness to assess the student’s needs in the parents’ areas of concern during the student’s three-year reevaluation, the district did not take steps to initiate the reevaluation.

Within 30 days of the date of this decision, the district is directed to reconvene the student’s IEP team for the purpose of discussing the parents’ requests. If the district feels it needs to obtain more information about the student to address the parents’ concerns, the district should promptly initiate the student’s reevaluation. The revised IEP must include proper prior written notice, including a description of the district’s proposals or refusals regarding the parents’ requests and reasons for them. The district must provide a copy of the revised IEP and any documentation related to the reevaluation within ten days of the meeting.

All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.

Sincerely,

Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support

For questions about this information, contact DPI Sped Team (608) 266-1781